Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka,
and Assistant Attorney General S. Creighton Waters, all of Columbia; and
Solicitor Robert Mills Ariail, of Greenville, for Respondent.

SHORT, J.:
In October of 2003, Parker stood trial for murder before Judge Hayes. The jury
twice reported to Judge Hayes its inability to reach a unanimous verdict.
Judge Hayes granted Parker’s motion for a mistrial. When Parker was tried
again in 2005 before Judge Few, he moved to dismiss based on double jeopardy.
Judge Few denied the motion and the jury convicted Parker of murder. Parker
appeals his murder conviction arguing Judge Few erred in denying his motion to
dismiss based on double jeopardy. We affirm.

FACTS

Parker shot and killed Robert Lee Stewart. Stewart had an
extensive violent criminal background and a history of abusive behavior toward
Parker’s sister, Angela. The police and emergency medical technicians
responded to a call to Angela’s mother’s house after Angela was beaten by
Stewart. The following day, Stewart and four or five others arrived at
Angela’s mother’s house. Parker lived next door to Angela’s mother. Parker
shot Stewart multiple times in the driveway. At trial, Parker claimed
self-defense, testifying he feared for his life as Stewart was pulling
something from his back pocket and from the back of the truck. Police officer
Wayne Campbell testified an open knife was found in the victim’s back pocket at
the scene.

During the first trial, there was a significant amount of
animosity between the solicitor and defense counsel, appearing in the record as
early as pre-trial motions and continuing throughout the proceedings. Prior to
questioning the first police witness, the solicitor explained to the court that
there was a videotape made of the crime scene that included graphic footage of
the victim’s body. The solicitor redacted that footage and presented defense
counsel with the redacted copy on the day of trial. The original videotape,
however, was shown to the jury. The solicitor claimed it was unintentional.
Defense counsel moved for a mistrial and dismissal with prejudice based on
prosecutorial misconduct. He argued the solicitor’s case was not going well
and the State was now privy to his defense tactics. The solicitor argued she
did not know how the tapes were switched and there was no intention on her part
to force a mistrial. The court admonished the solicitor, but denied the motion
for a mistrial.

At the end of the State’s case, Parker moved for a directed
verdict. The court denied the motion finding that although the State’s case
had many lapses in evidence, there was sufficient evidence to present the case
to the jury. Parker testified he acted in self-defense. The trial court
denied Parker’s renewed motions for directed verdict and mistrial. The court
also prohibited the State from sending the videotape and a diagram of the body
depicting the victim’s wounds to the jury room.

After the solicitor’s closing argument, Parker again moved for a
mistrial. The court charged the jury and then heard arguments on the motion.
Parker’s counsel argued that many times during the trial, the solicitor accused
him of unethical conduct, badgered witnesses to concede they were merely
testifying as directed to by Parker’s counsel, and stated several times in
closing arguments that Parker’s counsel had coached the defense witnesses. He
further argued the solicitor improperly relied on numerous facts that were not
in the record and implied to the jury it was their community duty to convict
Parker of murder. He finally argued the cumulative effect of the prosecutorial
misconduct warranted a mistrial.

Prior to a ruling on the motion, the jury reported to the judge it
was deadlocked. The judge gave an Allen charge. After further
deliberation, the jury again reported it was deadlocked. The judge considered
the motion for a mistrial. The judge stated he had reviewed the motion for a
mistrial, the solicitor’s closing argument, and his notes from the testimony.
The judge found the solicitor’s comments during closing argument were improper,
constituted prosecutorial misconduct, and were alone sufficient to warrant a
mistrial. The judge also found the attacks on Parker’s counsel, the imposition
of the burden on the jury to convict in order to protect the community, and the
videotape warranted a mistrial. The court stated: “In my readings of those
opinions it’s almost as if . . . this court can infer that the defendant was
almost goaded into the position of asking for the mistrial. So based on the
totality of the circumstances that [have] occurred in this trial . . . I will
declare a mistrial.”

The court ultimately based the mistrial on the cumulative effects
of the misconduct. The State moved for a clarification of Judge Hayes’ order,
requesting a finding as to whether the mistrial was granted based on
prosecutorial misconduct that was intended to: “(a) subvert the protections
afforded by the Double Jeopardy Clause, (b) goad or provoke the defense into
moving for a mistrial or (c) terminate the trial.” By letter, Judge Hayes
responded he had reviewed the transcript and his notes and concluded: “Nowhere
do I find that this Court was ever asked to rule on the granting of a new trial
nor asked about the issue of jeopardy.” The State appealed and this court
dismissed it as not immediately appealable.

The
State tried Parker again. Parker moved to dismiss based on double
jeopardy arguing the solicitor at the first trial intentionally goaded him into
moving for a mistrial. Judge Few denied the motion to dismiss stating: “[R]egardless
of my analysis of what happened in the first trial, this motion to dismiss is
denied because it was the jury’s being deadlocked that [led] to the manifest
necessity that [led] to the mistrial.” Judge Few then stated he had analyzed
the case and reviewed the transcript. Judge Few concluded the solicitor had
not intentionally goaded the defense into moving for a mistrial. The second
trial proceeded and the jury convicted Parker of murder. This appeal followed.

LAW/ANALYSIS

Parker argues the trial court in the second trial
erred in denying his motion to dismiss based on double jeopardy. Parker argues
the solicitor’s conduct, including showing the jury the videotape of the
victim’s body and implying the defense counsel coached the witnesses during her
closing arguments, was intended to goad him into moving for a mistrial. We
find no reversible error.

The
Double Jeopardy Clauses of the United States and South Carolina Constitutions
protect citizens from being twice placed in jeopardy of life or liberty. See U.S. Const. amend. V (“No person shall be . . . subject for the same offen[s]e
to be twice put in jeopardy of life or limb . . . .”); S.C. Const. art. I, § 12
(“No person shall be subject for the same offense to be twice put in jeopardy
of life or liberty . . . .”). “Under the law of double jeopardy, a defendant
may not be prosecuted for the same offense after an acquittal, a conviction, or
an improvidently granted mistrial.” State v. Coleman, 365 S.C. 258,
262-63, 616 S.E.2d 444, 446-47 (Ct. App. 2005).

A
defendant who has moved for and been granted a mistrial based on prosecutorial
misconduct may successfully invoke the Double Jeopardy Clause to prevent a
second prosecution when the prosecutor’s conduct giving rise to the mistrial was
intended to “goad” or provoke the defendant into moving for the mistrial. Oregon
v. Kennedy, 456 U.S. 667, 676 (1982); State v. Mathis, 359 S.C. 450,
460, 597 S.E.2d 872, 877 (Ct. App. 2004) (applying same standard in South Carolina).

Thus,
the determination of whether double jeopardy attaches depends upon whether the
prosecutorial misconduct was undertaken with the intent to subvert the rights
protected by the Double Jeopardy Clause. Coleman, 365 S.C. at 263, 616
S.E.2d at 447. “The trial court’s finding concerning the prosecutor’s intent
is a factual one and will not be disturbed on appeal unless clearly
erroneous.” Id.; see alsoMathis, 359 S.C. at 460-61, 597
S.E.2d at 877-78 (stating deference should be given to the trial court’s
determination of the existence of the prosecutor’s intent).

We first must pay
deference to Judge Hayes’ letter indicating he did not rule on the jeopardy
issue in granting the motion for a mistrial at the end of the first trial. At
the second trial, Judge Few first denied the motion to dismiss based on the
jury deadlock. We need not address this issue as we are restricted in our
review of his further factual finding that the
solicitor had not intentionally goaded the defense into moving for a mistrial.
We find support in the record to affirm the finding that the solicitor did not
intentionally goad Parker into moving for a mistrial. Accordingly, the trial
court did not err in denying the motion to dismiss based on double jeopardy.